The
MARCH 2020
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VOLUME 1
Catalogues
2020-21
SPECIAL ISSUES NEW WORLD DIFFERENT SIDES
For:
The Globalite Colloquiums March 2020
C / O
P U B L I S H E D B Y I N T E R N A T I O N A L I S M A B H I G L O B A L L E G A L R E S E A R C H & M E D I A L L P
The
Catalogues Volume 1 | March 2020 March 28, 2020
Index Executive Summary List of Abstracts
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Executive Summary Our team at Internationalism believes in academic innovation and skill development in the field of legal research. To encourage accessible and feasible form of research and development activities in law and international affairs, we intend to organize colloquiums with relevant stakeholders who are currently involved with the field of legal and social science education, i.e., academic institutions, research centers, legal think-tanks, bar associations, government agencies and other relevant stakeholders. In the Colloquiums, we intend to invite students, scholars and professionals to present and discuss their research ideas in various fields of international law and relations via their research proposals. On March 29, 2020 - we organized the March Edition of The Globalite Colloquiums through Online Means. The themes for the March Edition are as follows: Whether Constitutional Morality can be upheld by Courts? Can Direct Democracy be a better alternative to Indirect Democracy? The online edition of the Panel Discussions in the Colloquiums will be available at anchor.fm/internationalism-global.
Regards Amulya Anil Additional Executive Director The Globalite Colloquiums March Edition
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Speakers for the Colloquiums
Azad Singh Panigrahi Deputy Secretary State Election Commission Odisha
Nipun Saxena Advocate Supreme Court of India
Saikat Dutta South Asia Editor Asia Times Online
Kashish Makkar Founding Editor Law School Policy Review
Shree Rahul Research Scholar NALSAR Hyderabad
Gyanendra Gangwar Civil Servant
Yashna Adlakha Mehta Associate Shardul Amarchand Mangaldas
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How technology and Block Chain is Changing the World of Taxation for Tax Payers and Government Nandini Tripathy [0000-0001-6266-0109] Symbiosis Law School, Hyderabad nandini.tripathy121@gmail.com
Abstract. The World Customs Organization (WCO) has started out work to apprehend attainable contextual analyses and employments of blockchain for Customs and other outskirt places of work with the end aim of enhancing consistence, alternate help, and misrepresentation area (counting controlling of unlawful exchange via the abuse of blockchains and Bitcoins), at the same time as addressing related adjustments in lawful and administrative structures. The target of this paper is consequently to speak approximately manners by means of which Customs ought to use the intensity of blockchain and the diploma to which the eventual destiny of Customs can be molded utilizing blockchain-based packages. A quit that has been come to after alternate is that Customs could most probable have an extra great and clearer photograph of global change specifically as a long way because the improvement of cargoes and dispatches as being tied with the stream of capital. With blockchain-based totally packages, on this manner, Customs may want to develop into a simple fringe controller with more prominent capacities later. "Blockchain" alludes to a kind of information shape that distinguishes and tracks exchanges cautiously and shares this fact over a conveyed system of PCs, along those strains creating a kind of circulated consider arrange. "Savvy contract" is some other term to painting the blockchain innovation: a PC conference allowing the execution of agreements without the inclusion of outsiders. The advantages of blockchain innovation are time and cost investment finances, progressively comfortable documents made even more sturdy via encryption and sharing within the gadget. There are nonetheless some issues concerning blockchains; the primary is connected to partners' safety as, in contrast to virtual varieties of cash, fantastic contracts have to be related to characters. Another issue is the connection among believe and execution: the greater numerous the hubs are within the machine, the extra strong the system is, but every exchange requires greater power and time to be finished, as every organized change are shared through all hubs. Keywords: Customers, Innovations, Agreements, Safety, Blockchain.
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The Rise of Post-truth Populism in Pluralist Liberal Democracies: Challenges for Health Policy Nandini Tripathy [0000-0001-6266-0109] Symbiosis Law School, Hyderabad nandini.tripathy121@gmail.com
Abstract. Recent years have witnessed the upward thrust of populism and populist leaders, actions and guidelines in lots of pluralist liberal democracies, with Brexit and the election of Trump the 2 maximum latest high-profile examples of this backlash against set up political elites and the establishments that support them. This new populism is underpinned by means of a post-fact politics which is the usage of social media as a mouthpiece for ‘fake information’ and ‘alternative records’ with the goal of inciting fear and hatred of ‘the other’ and thereby supporting to justify discriminatory fitness rules for marginalized agencies. In this text, we explore what is supposed by using populism and highlight some of the challenges for fitness and fitness policy posed by using the new wave of submit-truth populism. Recent years have witnessed the upward push of populism and populist leaders, actions and guidelines in many pluralist liberal democracies, with Brexit and the election of Trump the 2 maximum latest high-profile examples of this backlash towards established political elites and the institutions that aid them. This new populism is underpinned with the aid of a publish-truth politics that's using social media as a mouthpiece for ‘fake news’ and ‘opportunity data’ with the purpose of inciting worry and hatred of ‘the alternative’ and thereby assisting to justify discriminatory fitness rules for marginalized companies. In this article, we discover what is supposed via populism and highlight some of the challenges for health and fitness policy posed with the aid of the new wave of post-truth populism. There are also issues around the so-called moral sense laws which enable people and organizations to use sense of right and wrong objections in opposition to expenses of sexual orientation discrimination. In the United Kingdom, there had been calls to introduce charging mechanisms for ‘fitness vacationers,’ with the impact that foreign places patients are required to pay upfront for their care. However, amid all the political clamour and rhetoric round ‘freeloading’ fitness vacationers, it must not be lost that a more principle is at stake – the introduction of a proper charging mechanism into a Beveridge primarily based fitness machine. Indeed, some hospitals within the United Kingdom have already began to price for non-compulsory surgical procedure, despite the
3 fact that sufferers have already paid for get entry to to care via direct taxation. Here we see the potency of populist appeals, wherein the invocation of the freeloading ‘different’ can be used to justify a essential alternate to the precept of regular healthcare and in the end the dismantling of the National Health Service (NHS).
Keywords: Populism, Liberal Democracy, Post-truth Politics, Health Policy
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3 _________________________________________________ Direct Democracy: A Better Alternative to the Indirect Democracy Rohit Raj [0000-0003-4314-3020] Lloyd Law College, CCS University officialrohitraj01@gmail.com
Abstract. Direct democracy a better alternative to the Indirect democracy is the constitutional topic which as a author like to address the constitutional aspects through the help of explaining and analyzing democracy and it’s both types i.e. Direct and Indirect democracy. The whole Paper is about the democracy and how the selection of direct democracy is far better than the choice of Indirect democracy instead of prevailing both type of democracy in the existing world through the help of critical analysis of it since from the very beginning and evolution of Democracy and it’s both types. The Author describes or analyses the whole gamut of this and the author analyses plethora of aspects of both the democracy whether it is Direct democracy or it is Indirect democracy. The Author has divided this whole paper into four parts to explain and analyses the different aspects of both type of the democracy to overcome for a better way and to choose effectively. Before dealing with the first part the author talks about the Democracy and the way the concept of Democracy comes and exist. The first Part deals with the evolution of direct and Indirect democracy and in which countries it is currently prevailing and the current democracy and it’s both types is same as when it was first introduced. The Second half of the Paper deals with the how both the direct and Indirect democracy approaches towards their citizens and deals with the several arguments which deals how the direct democracy a better alternative to the Indirect democracy and how the direct democracy is correspondence to the people’s opinion and also deals with how it prevails in this current world scenario. Third half of the Paper deals with how the direct democracy differs with the Indirect democracy and the arguments put forwards to demark between the both type of Democracy i.e. Direct and Indirect democracy and restrictions put down on citizens of that country where either of these democracy prevails as per the rules and regulation of both the democracy and how much the current types of democracy deviated from the types of democracy when it emerged in Greek. After analyzing all the aspects of Direct and Indirect democracy and also it’s
5 approaches towards the citizens of country now the author in the last phase or part of paper explain about the different policies and way of governance in both type of democracy and also does the critical comment related to both the types of democracy and afterward the author has put forward the conclusion of whole the paper and it’s way forward. The whole Paper analyses it’s whole gamut of the topic with the evolution of it and it’s way forward. Keywords: Plethora, Gamut, Direct Democracy, Indirect Democracy, Evolution.
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Direct Democracy: A Protracted Process or a Prevalent Panacea? R Arun Kumar[0000-0001-6225-926X] Department of Labor and Administrative Law in Chennai Govt. Law College, Pattaraiperupudhur, Chennai arunkumarravikumar1997@gmail.com
Abstract. On hearing the term “Democracy”, the first thing that flashes in our thought is the greatest personality of all times in the U.S. history, Abraham Lincoln and his well- known phrase regarding democracy, which still has its own relevancy in this modern era. Secondly, which hits our mind regarding the success of democracy are two countries, namely, Switzerland, the finest democracy and India, the largest democracy. In this paper I would be glad to link a bridge between the two democracies in what way these two- approach democracy. As we all know there are two types of democracy (Direct and Representative Democracy). Democracy solely means the participation of population in determining their governing bodies and governing policies. The criterion which splits the democracy into two is the quantum of contribution by the people towards governance mechanism. Apart from these division, a third form of democracy emerged called Semi-Direct Democracy, which is prevalently followed by most of the counties across the globe. One cannot take it for granted that all democracies are effective democracies, leaving behind the qualitative and quantitative participation of people. Each technique of Government stands on their own merits and demerits. The reason behind the author to specifically emphasis on the term “technique”, instead of “form” of government, is that a government cannot run a nation solely based on single mechanism, either direct or indirect. It should always be a mixed bag of both or should be termed as so-called Semi- direct democracy. It is a known fact that either of these democracies can’t survive exclusively without the existence of another. On one hand, for every Indirect democracy there must a spark of ignition of direct democracy. On the other hand, government which run solely on Direct democracy is not for found, some essence of representative democracy is forcibly required, to balance the tripod stand between the emotional people, intellectual at the same time greedy government and rigid constitution. If we take Switzerland, for instance, they are not fully based
7 on direct democracy, they them self-refer as Semi-direct Democracy. As far as my limited knowledge only Swiss is considered to be the successful nation which has direct democracy as a major tool, especially Swiss Cantons of Appenzell Innerrhoden and Glarus. On coming to Indian Democracy, the Constitutional Drafters were very delegate in their approach in determining the technique which needs to be induced to a population explosive country. It is well known fact that India is not a direct democracy and the reason behind this is the demographic feature of the country. Drafters also sensed that there would be probability of misuse of power by the bureaucrats and political parties in the near future. So they thought of making India as a Quasi Democratic country. The power cannot be totally given to the hands of each and every people as it would certainly lead to chaos, nor can be completely taken away from the people. So the makers thought that it would be better it make India stand in center between direct and indirect democracy and further paved the way for the people to enjoy fruitfulness of democracy, not by referendum or plebiscites, but through the doors of Judiciary. The author would like to compress his paper within the below said limits: 1. Whether Swiss is successful in reality in effecting the direct democracy or the government has compromised with other features of democracy in carrying out the direct democracy alone? (For example, restricting the liberty of people on Sundays, etc.). 2. Does India fake herself before the global arena that it is the largest successful democracy? 3. Does population is necessarily a hurdle in effecting the democracy? 4. Is Indian Judiciary with Writs, Judicial Review, and PIL considered as an Alternative for Swiss’s Referendum, Popular opinions or Plebiscites? 5. Can Independence of Judiciary fit enough to bridge the lacuna of Direct Democracy? The author moreover discusses with certain landmark referendum processes like BREXIT, Swiss Constitution reconstruction referendum in 1874, 1992, etc., and how far the Indian electorate collegium go up with the system of Plebiscites or referendum.
Keywords: Democracy, Referendum, Plebiscites, Demography, Quasi- Democratic, Judiciary.
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The Principle of Constitutional Morality in Indian Courts: Relevance and Application Sruthi Kannan [0001-6397-3617] Sree Narayana Guru College of Legal Studies, Kollam, Kerala University sruthikannan37@gmail.com
Abstract. A country whose constitution holds judicial independence as one of its paramount features, also carries forward the agenda to deliver justice and fairness to its citizens. The paper throws light onto what extend can courts upheld the principle of constitutional morality at the present scenario. It will also put forth some of the recent cases which suggests the developments in the field of constitutional morality, for instance the Sabarimala Judgment, Naz Foundation v. State of Delhi etc. The paper will further study the definition and scope of the principle with reference to the Indian Courts and their jurisdictional capacities. To define constitutional morality, it’s a moral responsibility of an individual to be faithful towards constitutional values and uphold them with utmost integrity, without any compromise or the adherence to the core principles of the constitution in a democracy. It also tends to create an effective coordination between conflicting interests of different people and the administrative cooperation to resolve those conflicts amicably. There is no doubt to the questions- Whether the constitutional morality can be upheld by the courts! Many of the landmark judgments by the Indian Judicial System has proved it right. Where judges are trying to support their realist and orthodox approach by taking a liberal view of Constitutional Morality there are allegations that some judges are showing favoritism and some are inefficient in decision making, which further leads to mass struggle and protests. To avoid the same, the preface of the principle of constitutional morality needs to be altered in such a way that it ensures the protection of law as well as the interests of people. Here the most important question lies with the discretionary power of the courts to exercise the principle of constitutional morality in the disposal of cases. i.e. when and how can the principle of constitutional morality can be applied and on the nature of cases it can be applied. The principle of Constitutional Morality is also considered as a dangerous weapon in the hands of the judicial officer's during the disposal of prominent cases , but on the other hand it can also upheld the protection of rights and morals of the larger groups which will eventually lead to the enhancement of the Judicial system in India. Towards the end of the paper it would like to throw light on the
9 advantages and disadvantages of the principle in the present scenario, it would also suggest some of the necessary measures through which the principle can be used in an effective manner , one of the them is to deal with the concept of Constitutional Morality by limiting the scope of its usage and laying down authoritative principles, to guide the judges and ultimately the courts of judiciary. Only through effective management and guidelines the principle of Constitutional Morality can be upheld in a country like India. Keywords: Constitution, morality, nature, scope
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Constitutional Morality- A Substantive Vision of Constitution Naman Jain [0003-1914-7822] Jamia Millia Islamia, University, New Delhi nkj29007@gmail.com
Abstract. After looking at some of the historical facts I can say that constitutional morality is merely a standard that was insisted upon in seeking behaviors consistent with the longstanding acceptable norms limiting the sovereign power by its agent in a society ruled by law. When Constituent Assembly was framing the Constitution, the members were aware that there are many unfair practices are being followed or practiced in the various part of the country. These practices include such as untouchability, discrimination, inequality, gender discrimination, racial discrimination, etc. to eliminate these practices the assembly inculcated fundamental rights so that the state cannot discriminate on that basis. At the time of the drafting of the constitution, these unreasonable things were being practiced by the people which was against morality. So, the framers during the drafting of the constitution keeping the society in mind & adopted the law that stands to protect the morality against these practices. And if anyone does anything against the constitution then it will be against the constitutional morality. Therefore, the interpretation of the law should be done on the basis of the values given in the constitution i.e. according to the spirit of the constitution and not on the wording of the constitution. Also, some other laws have been given to the people in the name of personal laws like sharia law (Muslim law), Hindu law and many others. The word constitutional morality has been used four times only in the Indian constitution, twice in Article 19 and twice in right to freedom of religion under Article 25 and 26. Furthermore, I will be discussing that constitutional morality interferes in the matter of religion and in the matter of Right to freedom of speech and expression. The sources of constitutional morality in India. (1) Text of the Constitution (2) Constitutional Assembly debates;(3) Events that took place during the framing of the Constitution;(4) Case Law History. "The question today is about destroying the principles of constitutional morality by using judicial or parliamentary power and supreme court will never allow it." I will also discuss the newly introduced Citizenship Amendment Act in brief how it is not violating the constitutional morality of the constitution. So, in that context constitutional morality, it can be declared valid by the court of law. It is meaningless to reach any conclusion or take any decision regarding constitutional
11 morality without taking any reference to the public and their political role in society. There are many cases in which the court held that constitutional morality is a basic structure of the constitution. And it can’t amend such as in the case of Sabrimala (Case of faith and belief), NALSA (Transgender Case). Also, this paper would be discussing some other cases in briefs such as Ayodhya Judgment, Shayara Bano case and Navtej Singh Johor Case. Under what concept the Supreme Court has upheld the constitutional morality of the constitution. How Constitutional morality can be upheld by the court in the matter of religion? D.Y Chandrachud also stated that the freedom to believe, to be a person of faith and to be a human being in prayers has to be fulfilled in the context of a society which does discriminate between its citizens their equality in all matters of status and opportunity gives true meaning to the liberty of belief, faith and worship. And this paper also will also discuss how constitutional morality can be upheld over Section 377 of Indian constitution by the court of law by the way of Naz foundation case which used the concept of constitutional morality to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality. Keywords: Constitution, Fundamental Rights, Section 377, Basic structure, Law
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Can Direct Democracy be a Better Alternative to Indirect Democracy? Riya Gulati [0000-0001-8060-774X] Paralegal at Law Offices of Caro Kinsella & Youth Ambassador for the ONE Campaign, Ireland. riyagulati0205@gmail.com
Abstract. Everything comes with a stipulation and suffuse with gremlins so does the pure democracy and representative democracy. The former provides privilege to the people to directly decide on the policy initiatives without any intermediary whereas the latter provides citizen the right to vote for their representatives who then implement the policy initiatives. Theoretically, pure democracy may sound as the best form of government but practically, it will end up in a disarray for our country. As said by Bertrand Russell, “the institution of representative government to us seems an essential part of democracy, but the ancients never thought of it. Its immense merit was that it enabled a large constituency to exert indirect power, and thus made possible the distribution of political responsibility throughout the great states of modern times.� In brief, (direct) democracy is the process by which people choose the individual who will be later held accountable for their bustles. Direct democracy is not doable in India because of its enormous population, illiteracy, lack of awareness, commitment, participation and interest of people in decision making process, unavailability of resources and conflicting personal, statehood or religious interests. But, the mixture of direct and indirect democracy will create a better room for governance. Adopting a semi-direct democracy will be feasible for a big country like India whereby the representatives will be duty bound to administer day-to-day governance and the citizens are able to exercise control on their governments and legislations through various forms of popular actions such as popular initiative, binding referendum, revocation of mandate and public consultations. In this operation, the government is elected, but unalike in the representative system, there are binding mechanisms of control by which the citizens get hold of power and can veto laws of the parliament or propose new legislations which will be subsequently subject to a binding referendum. Herein, the government becomes more receptive to the people and increasing the participation of the citizens in decision making fosters the rectitude of check and balances. Even the exercise of popular direct democracy would turn out to be a costly & time-consuming process and would add up the
13 extra work. But it can be covered up by following certain principles as followed by Switzerland. This paper aims to provide the spirit of democracy by accentuating the gist of direct and indirect democracy. It will also take the advantages and disadvantages of the direct and indirect democracy into consideration and will highlight their types. It will indicate how direct democracy is practicable in Switzerland and will be incommodious for a humongous country like India. It will provide various reasons for which the pure democracy will not work out for India at this stage. It will deduce why the adoption of a semi-direct democracy is a better alternative for India.
Keywords: Democracy, Direct Democratic Reforms, Indirect Democratic Reforms.
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Manifestation of Popular Will with Reasoned Dialogue Need of the Hour Aditi Chowdhury [0000-0003-2809-3125] Jagran Lake City University, Bhopal aditi.08chowdhury@gmail.com
Abstract. Well informed, reflected and sustained will of the people should inform democracy. There can be bones of contention but that can only be resolved and evaluated on the basis of a liberal theory of democratic representation. Democracy is undergoing continuous alterations. Giovanni Sartori, an Italian Political Scientist, entitled the first chapter of his treatise- “The Era of Confusion in Democracy� with a reason. In the crisis era, where political decisions are being taken without wide scale democratic supervision, radical voices advocate the return of power of decision making to the people. This paper briefly throws light on critical and historical reconstruction of two paradigms of democracy. Whether direct democracy is better than indirect democracy can be determined on the basis of the conditions of the soil where it is being implemented. Owing to the vastness in diversity in a country like India, with a large number of populations still being illiterate or not having desired skill or time, cannot allow its citizens in legislation. The paper addresses a moot question that whether the citizens have competence to recognize the concerns prevailing across the length and breadth of the country. Are they informed enough to understand the nuances of policies or are representatives elected are better at it. The overarching question that the paper deals with is whether direct democracy beneficial to democratic government. Direct democracy is grounded in the principle that political sovereignty resides in the people. The French revolutionaries were the first to introduce direct democracy as a technique to help their revolutionary goals. This paper also illustrates how referendums and plebiscites, though such votes are portrayed as popular governance in its purest form, subvert democracy rather than serving it. Voters make their decisions with relatively little information forcing them to rely on political messaging which in turn have serious repercussions. Plebiscites are slow, expensive and can drag out damaging prejudices into the public sphere. The people in indirect democracy manifest their will through voting their representatives. Experts with technical know-how must come with better options of governance and legislation must accommodate every interest. In modern times, policies proposed must go through elaborate and reasoned dialogue. Such dialogue encourages persuasion rather than coercion. Citizens can challenge and
15 participants must honor that which is rationally justified. One of the objectives of the paper is to analyze the concept of deliberative democracy in the real sociopolitical world. Deliberation allows dig deep into every inch of the issue which cannot be done in direct democracy as it is physically impossible for all the people to sit together and take decisions regarding affairs of state. John Stuart Mill puts it very aptly that the best government must be the government of the wisest, and these must always be a few. The people ought to be the masters, but they are masters who must employ servants more skillful than themselves. Keywords: Democracy, Representation, Illiterate, Competence, Diversity.
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Whether Constitutional Morality Can Be Upheld by Courts? Gangesh Aggarwal [0000-0001-6999-0426] Gujarat National Law University (GNLU) gangeshaggarwal44@gmail.com
Abstract. This paper supports the contention that constitutional morality can be upheld by the courts. In 1846, when Richard Grote, a scholar, wrote about the rise and fall of Athenian democracy, he explained that the diffusion of the sentiment of ‘constitutional morality’ throughout society is a prerequisite for a stable, peaceful and free society. The morality referred to includes the acceptance by both state and society of the universality of human rights. Some of the worst carnages have occurred when society and states prioritized the views of the bulk or those seemed to be superior. it's in recognition of this, and following the horrific atrocities of World Wars 1 and a pair of, that states across the world in 1948 committed themselves to the Universal Declaration of Human Rights. The Preamble and provisions of the Declaration embodies the idea of ‘constitutional morality’. Similarly, the African Charter on Human and Peoples’ Rights, orders states to protect human rights, as an essential requirement for liberation and the elimination of all forms of discrimination, including colonialism, Zionism and apartheid. These ideas were further incorporated into post-independence constitutions, signaling an occasion from an oppressive past. in this context, the enshrinement of constitutional rights is geared toward transforming society into one that's just, humane and compassionate. What may be considered as morally wrong by society does not automatically get recognized as legally wrong. Historically, the standard was insisted upon in seeking behavior consistent with the longstanding acceptable norms limiting the exercise of sovereign power by its agents in a very society ruled by law. This was true within nation environment where the contours were left largely unwritten but determined by institutional arrangements like ‘Constitutional conventions’, from which derogations were frowned upon. This was invoked to handle the conscience of those agents of the sovereign within the absence of legally binding obligations requiring them to act in any particular way. Since they were sensitive to such peer pressure, compliance to the non-binding conventions and norms might be ensured. There is a good need for constitutional morality as having a written constitution
17 should ideally minimize our reliance on such abstract constitutional conventions and therefore the must invoke constitutional morality to deal with the conscience of the agents of the sovereign. Concerns about the longer term of democracy and democratic traditions are, no doubt, growing across the globe. In quite few democracies, moreover, one also can perceive a decrease in democratic freedoms and a trend in favor of illiberal populism. India was hitherto looked as if it would be an exception to the current, being protected by safeguards found in its Constitution — the merchandise of a Constituent Assembly that consisted of not only the most effective legal minds, but also of compassionate individuals who espoused the best human values. It can be seen from the past time during the tenure of Hon’ble ex-chief Justice of India Deepak Mishra. During his tenure he referred to the concept of constitutional morality as many as 17 times. And it can also be observed from the cases of Section 377 case (Navtej Singh Johar v. Union of India),Sabrimala Temple case(Indian Young Lawyers Association v. Union of India) and Triple Talaq case(Shayara Bano v. Union of India). Similarly, the archaic law under Section 497 which made it a punishable offence for a person to possess sexual issues with a ‘wife’ of another man without the consent of such man was held to be unconstitutional on the bottom that thinking of adultery from the purpose of view of criminality was a retrograde step which it existed only “for the benefit of the husband, for him to secure ownership over the sexuality of his wife” and “aimed at preventing the woman from exercising her sexual agency”. (Joseph Shine v Union of India). The idea of “a woman as a possession of her spouse” was held to be completely contrary to the constitutional ideals of dignity and equality. Again, in the case of Shafin Jahan v Ashokan K.M., the apex court gave effect to the personal choice of an adult woman to marry a person practicing a different religion. In these cases constitutional morality superseded the general public morality, ethics and sentiments and therefore the courts displayed an exemplary tradition of creating of serving complete justice by not going by the general public morals and ethics and upheld what is just and fair, hence following the principle of constitutional morality instead of having public sentiments against it.Cases are decided following the black letter of law,by adopting constitutional norms and the concept of constitutional morality is always there to aid it.There are different approaches to constitutional morality, some benches consider it in some manner, some bench in the other. Sometimes in order to capture the spirit and soul of particular provision wanting to know what it means,applying the concept of constitutional morality can help us in understanding a paticular norm stated in the constitution. The stronger the presence of constitutional morality, the less need there is to put everything down in black and white. Keywords: Custom, Universal Declaration of Human Rights, Adultery, Black Letter of Law, Adultery
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LGBT Rights: A Fight for Light Suryasnatta Das [0000-0002-9237-9163] University Law College, Vanivihar, Bhubaneshwar suryasnatta@gmail.com
Abstract. In countries like India LGBT community has always been traumatized and never been accepted, The Effect of judicial pronouncement regarding third gender identity can only be found in Pen and Paper. This Paper tries to Focus on the contemporary Legal, Social, Economic and Political Struggle of this community even after getting legal status. This paper throws light on some issues like social discrimination, inequality of opportunities, illiteracy and poverty among Indian Population, which mocks at the Rights of LGBT community. In connection to Charter of the United Nations and The Universal Declaration of Human Rights (UDHR), This paper tries to find the where the project of Creating a welfare society for Transgender community actually fails. This also gives emphasis on security rights, liberty rights, political rights, due process rights, equality rights, welfare rights and group rights of Transgender Community as provided in the Human Rights Charter. This paper Also Investigate the Success of Right to Equality and Right Against Exploitation regarding this Community in India. By Providing Some Statistics and Information, it shows The Dark Zone of Violation of their Fundamental Rights. This paper also compares the position of a LGBT member in the boot of a Common Men in India regarding some Rights and liabilities. On the other hand, it studies On the LGBT rights provided in the Developed countries and Developing Countries. Throwing Light on the circumstantial factors, History and Culture as well as Political scenario of Countries like Sweden, Austria, Belgium, Denmark, Canada, it answers to some of the queries regarding the acceptance. On the contrary, it also find its existence in the countries like Nigeria, Quatar, Iran, Yemen and Saudi Arabia showing that Where it fails. It also compares the position and circumstances of India with these Countries and tries to find out the future of LGBT rights in India. It Focuses On Some of the Famous LGBT personality across the globe and shares their stories amidst Struggle and Tries to show the attitude of the Globe towards this Minority Community. Apart from This, It studies the Rights of this Community in connection to some Famous Companies like Google, Facebook, Apple, etc. It also Studies on the Projects taken by Several NGO and World class Org like Amnesty International In this Regard. It also studies their struggle access of Right to life and personal liberty as well as Right to dignity including right to food, right to education, right to medical facilities, right to pollution free environment etc. in India as well as
19 across the Globe. It also studies the Condition of LGBT community in Slums and Refugees Areas and During the Time of War and external as well internal aggression. It also focuses on the Vulnerability Of this Communication in comparison to others. Combining all the Rights Provided to this Community, This paper also tries to Find out some remedial measures to protect and Preserve their status and identity. This Includes Creating awareness and education, inclusion of This Community into Mainstream through several activities, makings Reservation for this community in the field of Economics and politics, Creating Self Help Group and Creating Special Forces of LGBT people like Special force in Military and police for protection of women. Throwing a Bird's eye view on the Problems and Solutions this paper concludes with an Experiment done by the Author in a Slum of LGBT people in India. Keywords: LGBT issues, Gender Rights, Inequality.
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Judiciary: The Stakeholder of Constitutional Morality Akshika Kriti [0002-2089-0982] Deepa Shree [0002-4086-0983], Sonam Kumari [0002-8135-4470] Central University of South Bihar, India akkriti10@gmail.com
Abstract. In the world of diversity, where the conflicting views are often observed, it is the Court of law on which the ends of every means are relied upon for what judgement should be in any dispute. It is considered to be supreme but sometimes area of conflicts remains to be continued which may arise lack of acceptance by people due to negation of morality or denial of other perspectives. Similarly, when there is a conflict between the interest of people and interest of administrative cooperation, constitutional morality act as a tool to resolve such conflict effectively in the friendly manner without turning the matter hostile to reach their respective ends. It has emerged out of the inspiration from traditions of mass mobilization by Leninist and Maoist and views of B.R. Ambedkar, Mahatma Gandhi and several other leaders across the world. In India, the word ‘constitutional morality’ is not alien to the system as B.R. Ambedkar emphasized on its importance in the Constituent Assembly. Literally, Constitution is regarded as the “supreme law of the land”, it is the parent of all laws and ‘Morality’ is adhering to the values of society which we adopt, may be, speak the truth, be kind and helpful, generous and respect your elders; or, adherence to the core principles of the constitutional values is constitutional morality. As ours society life is based on the moral principles, State is also guided by its moral principles or values of the constitution which are fundamental for delivering justice like Rule of Law, Individual Liberty, right to equality, Freedom of choice, Preamble, Freedom of Expression, Social justice, Procedure established by law, Due process of law and so on. Constitutionalism seeks to achieve its objective through the already existing methods of institution of governance. India holds a strong democracy even having economic and social problems, indicates the strength of constitutional morality. Abuse of power is often another side of the same coin which has been observed, needs a proper system of check and balance. Providing safeguard to collective interest is always been an obligation but in the same time it came under shadow of power and position as the emergency imposed by Indira Gandhi’s government was one of the example. The Courts of India have used constitutional morality as the transformative tool for interpreting the constitution and has ensured the supremacy of constitution. It prevails over all the customs and laws. Since the concept has pioneered earlier yet it is reviewed in recent days by Indian Judiciary. Overruling constitutional
21 morality is same as ignoring basic structure as it is above religious morality and ideology. The Sabarimala review order seems to be against constitutional morality according to Professor Upendra Baxi. The High Court of Delhi in case of Naz Foundation held the criminalization of homosexuality unconstitutional and employs the notion of constitutional morality. The apex court held the personal law of Muslim, the triple talaq unconstitutional as it violates the constitutional morality. Indian political parties are also expected to be the legitimate practitioners of the ideals of constitutional morality. The abrogation of article 370 without the proper consultation of state is also the violation of spirit of constitution. Furthermore, matter in Election of Maharashtra CM case, Puttuswamy case and the Madhya Pradesh crisis and CAA needs court to practice constitutional morality. Therefore, constitutional morality can be upheld by courts but looking at the statement given by our hon’ble president, we can make out that constitutional morality can be upheld not only by courts but by every citizen including those who are holding the constitutional post and all the three pillars of the government which includes legislative, executive and judiciary as well to prevent judicial domination. Keywords: Constitutional Morality, Courts, Constitutionalism, Check and Balance
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Constitutional Morality Upheld by Courts in India in Different Cases Krati Pandya [0000-0001-9450-5445] Department of Law, Prestige Institute of Management and Research, Indore, Madhya Pradesh kratipandya98@gmail.com
Abstract. The basic function of the Constitution of India is to safeguard the rights of its citizen and to impose certain duties on them for the smooth functioning of the country. Morality is basically the attempt made by human in distinguishing what is right and what is wrong in our actions, behaviors and thoughts. There are many moral values and one of them is Justice. In a democratic and secular country like India, constitutional morality plays a vital role due to diversification. Constitutional Morality means that every individual, all the justice maker, etc. should be faithful towards the Constitution. The essence of Constitutionalism that gives unchangeable features and serves as a moral compass in the implementation and interpretation of the Constitution is the principle of Constitutional Morality. Principles of fundamental rights such as the right against discrimination, the freedom of speech, right to life and liberty, etc. drafted in the Constitution are few examples of Constitutional morality. It is a guarantee which removes inequality and discrimination. Dr. Babasaheb Ambedkar made few suggestions for better working of a Democratic country and its government which are: (a) Democratic form of Government should work for the welfare of all people and dynastic rule or monarchy rule should not be allowed. (b) Principles of equality should be adopted. (c) No democratic form of government shall survive without the principles of constitutional morality. “Wherever there is doubt and conflict we must allow constitutional morality to prevail. This is true patriotism to the Constitution”, said the former Chief Justice of India J. Ranjan Gogoi. Constitutional Morality is a kind of remedy to protect the Constitution from beliefs, religion and thoughts of people. Constitutional Morality should prevail over everything. Men and women are equal and so get equal rights. There’s another community i.e. LGBTQ who were not given equal rights and were discriminated on different grounds. Everyone has choice to choose their spouse whether man, woman or LGBTQ. After Section- 377 got decriminalized LGBTQ got their rights. If the decision would have taken on some religious, ethical or cultural ground, etc. this community would have not got justice. Constitutional morality was upheld by court in this case. Considering public morality not all the rights were conferred
23 to them. In Sabarimala case, the very ancient practice of not allowing women of age 10-50 years because they menstruate. This practice is totally violative of the Fundamental rights give in the Indian Constitution. The judges upheld that the practice of excluding women does not constitute an “essential religious practices”. When the Article 370 was diluted and Jammu and Kashmir was split into two Union Territories consultation was not taken from different sections and segments of the State which was contrary to the principle of Constitutional Morality. In Kesavananda Bharti case, the Supreme Court held that secularism is the basic structure of the Constitution and cannot be denied in the name of security and other considerations. Passing of Citizenship Amendment Act brought lot of chaos in the country. It allowed refugees from Afghanistan, Bangladesh, Pakistan to have Indian Citizenship but it refused Muslims for the same. It violated the Constitution as in this case secularism and principle of constitutional morality was not seen. Constitutional morality cannot always prevail in India due to different religious practices. For courts it is necessary to keep citizen’s sentiments into mind and give the judgment. The word ‘morality’ used in Article 25 & 26 constitute to constitutional morality. The religious practice must meet value of justice, equality, liberty and fraternity to pass any constitutional muster. Thus, it is better to conclude that upholding’ constitutional morality’ is very important part of our official as well as moral duty and it needs integrated efforts of all the sections of the society to make it possible. It should be used as a guiding light. Supreme Court should make more and more efforts in spreading Constitutional Morality during the interpretation of the Constitution and while giving decision.
Keywords: Diversification, Patriotism, Decriminalize, Constitution Muster
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